General principles as a source of international law : Article 38(1)(c) of the Statute of the International Court of Justice




Saunders, Imogen

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Article 38(1)(c) of the Statute of the International Court of Justice ('ICJ') has a long and chequered history. It has been denounced and exalted; both by courts and commentators. The discussion of the general principles of law is littered with assumptions which are rarely fully unpacked. Commentary by publicists is sometimes best understood as the product of their theoretical backgrounds, not expressly substantiated with reference to the actual use of the source by international courts and tribunals. Conversely, historical judicial use of the general principles of law often failed to address the theory underpinning the source. As a result, discussion of the source is fractured; and there is a trend both of undervaluing and underutilising Article 38(1)(c) as a source of international law. The thesis identifies four main contentious areas regarding the source: its function, jurisprudence, methodology, and type. These four areas are assessed; first against the historical development of the source itself, from the 1875 Draft Arbitral Procedure Regulations to the introduction of the source into the Statute of the Permanent Court of International Justice ('PCIJ'); second against judicial treatment of the source by the PCIJ, the ICJ and other international courts and tribunals; and finally against the commentary of publicists. In adopting this structure, the thesis demonstrates that some of the argued strictures on the source have no basis in either its development or application, but are rather a consequence of unspoken assumptions. Further, it develops a model of the general principles of law that is consistent with the source's history, and provides an objective rule of recognition for establishing norms of international law. The general principles of law must be understood in their proper temporal context. Thus, notions of globalism and 'civilization' are addressed, and the source is assessed against current understandings of these terms. Further, the temporal context impacts in relation to the growth of international law generally, and in confidence in international adjudication specifically, as well as information technology advancements (in particular full text searchability and the development of the internet). By entrenching the model of general principles in the source's historical development, this thesis considers the impact of these new, or changing, paradigms to the source without violating the model's historical integrity. Indeed, some of these developments strengthen the application, use and justification of the source. The value of the work is further shown in a final case-study, applying the model developed in the thesis to the area of cyber-crime. Here, the usefulness of Article 38(1)(c) as a source distinct from customary international law is demonstrated. Although there is often a tendency for the two sources to be conflated, a proper understanding of the general principles of law reveals it to be an independent source of law, uniquely suited to act in some situations where treaties do not exist, and custom cannot.






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